Driscoll v. Travelers Insurance

MONTEMURO, Judge,

dissenting:

I cannot agree with the majority’s holding that a gross loss calculation, rather than a net loss calculation, should be employed in determining the date on which the accrued work loss reached the $15,000 maximum. Contrary to the majority’s assertion, I believe that the legislature’s intent, which can be gleaned from construing the provisions of the No-fault Act in pari materia, was that a net loss analysis be utilized in calculating the date on which the $15,000 mark is reached. I therefore respectfully dissent.

I believe that the primary flaw in the majority’s analysis is that it approaches the problem with blinders. Instead of looking at the entire No-fault Act, the policies behind the act, and the interrelationship of the various provisions, the majority improperly focuses its attention on the definition of “work loss” contained in 40 P.S. § 1009.103. Our primary goal in construing any statutory provision is to ascertain and effectuate the intent of the legislature. 1 Pa.C. S.A. § 1921(a). In ascertaining legislative intent we must consider the entire statute and avoid according an individual *90provision an interpretation which does not take into account related sections of the same statute. Id.; Causer v. Mandarino, 338 Pa.Super. 564, 488 A.2d 36 (1985).

In any action under the No-fault Act it is important to recognize that what the claimant is claiming and what the insurer is required to provide is “basic loss benefits.” 40 P.S. §§ 1009.102(b), 1009.104. Section 201 of the No-fault Act entitles any “victim” 1 of an accident or survivor of a deceased victim to recover “basic loss benefits” in accordance with the provisions of the Act. 40 P.S. § 1009.201; McGilley v. Chubb and Son, Inc., 369 Pa.Super. 547, 535 A.2d 1070 (1987). One of the provisions with which the claimant must comply is the time limitations requirements contained in Section 106(c)(1). That section provides in pertinent part:

(c) Time limitations on actions to recover benefits.—
(1) If no-fault benefits have not been paid for loss arising otherwise than from death, an action therefor may be commenced not later than two years after the victim suffers the loss and either knows, or in the exercise of reasonable diligence should have known, that the loss was caused by the accident, or not later than four years after the accident, whichever is earlier.

40 P.S. § 1009.106(c)(1) (emphasis added). This portion of Section 106(c)(1) requires claimants to file their initial claim for “no-fault benefits” within two years from the date of “loss”. Sachritz v. Pennsylvania National Mutual Casualty Insurance Company, 500 Pa. 167, 455 A.2d 101 (1982); Borysowski v. State Farm Mutual Automobile Insurance Co., 368 Pa.Super. 399, 403, 534 A.2d 496, 498 (1987). The term “no-fault benefits” is defined in Section 103 of the act as “basic loss benefits, added loss benefits, or both.”2 40 *91P.S. § 1009.103. Basic loss benefits are further defined by Section 103 as follows:

‘Basic loss benefits’ means benefits provided in accordance with this act for the net loss sustained by a victim, subject to any applicable limitations, exclusions, deductibles, waiting periods, disqualifications, or terms and conditions provided or authorized in accordance with this act. Basic loss benefits do not include benefits for damage to property. Nor do basic loss benefits include benefits for net loss sustained by an operator or passenger of a motorcycle.

40 P.S. § 1009.103 (emphasis added).

Reading the limitations provision of Section 106(c)(1) in conjunction with the definition of “basic loss benefits” leads to the inescapable conclusion that an action for basic loss benefits, which are to be computed by a net loss analysis, may be commenced not later than two years after the victim “suffers the loss....” The question still remains as to when the victim “suffers the loss” for purposes of determining the date on which the two year limitations provision of Section 106(c) begins to run. This question was answered by our supreme court in Kamperis v. Nationwide Mutual Insurance Company, 503 Pa. 536, 469 A.2d 1382 (1983). In Kamperis, the court construed the term “suffers the loss” in the context of a claimant seeking basic loss benefits for work loss sustained. In formulating the test to determine whether an action seeking basic loss benefits for work loss is timely, the court read the limitations provision in Section 106(c)(1) in conjunction with Section 202(b). Section 202(b) provides, in pertinent part, “Work loss, as defined in section 103 shall be provided ... (2) up to a total amount of fifteen thousand dollars ($15,000).” 40 P.S. § 1009.-202(b)(2). Kamperis, supra at 541, 469 A.2d at 1384. Reading this section as a qualification on the general limitations provision provided in Section 106(c)(1), the court set forth a three part test for determining whether a timely action for work loss benefits had been commenced. The court opined:

*92Thus, the period of limitations provided in § 106(c)(1) must be construed to mean that, where as here no-fault benefits have not been paid for loss arising otherwise than from death, and the work loss was known to be caused by the accident, an action to recover work loss benefits under the Act may be commenced (a) within two years after the victim suffers the loss as a result of the accident; (b) within two years after the victim’s accrued work loss equals the maximum amount recoverable under the Act for work loss, $15,000, and (c) not later than four years after the accident.

Kamperis, supra, 503 Pa. at 541, 469 A.2d at 1384 (emphasis added) (citations omitted).

I believe that the majority misconstrues Kamperis as mandating a gross loss method of computation of the $15,-000 maximum under the second prong of the test. A careful reading of Kamperis reveals that the court spoke in terms of equating the date on which the victim suffered the work loss with the date on which he missed his next expected paycheck only with reference to the first prong of the test. Thus, the court’s reference to the definition of work loss as “loss of gross income ...” was merely meant to convey that for purposes of determining when an individual sustains economic detriment, e.g., loss of paycheck, and for purposes of initially computing the “continuing series of losses” (of paychecks) under the first prong, a gross method of computation is appropriate. See 40 P.S. § 1009.205. The question presented in this case, not specifically addressed by Kamperis, is the proper method of calculating under the second prong of the test whether the $15,000 maximum amount recoverable for work loss has been reached. The answer to this question can be inferred from the language used in the second prong of the test, the only place where the court factored into its analysis the $15,000 limit on work loss contained in section 202(b)(2). I believe that the court’s reference to the point where work loss equals “the maximum amount recoverable under the Act ...” implies that a net loss method of computation be used *93in determining when the $15,000 maximum has been reached.

In computing the amount that a victim can recover under the Act, Section 206 provides as follows:

§ 1009.206. Net loss
(a) General—Except as provided in section 108(a)(3) of this act, [Section 1009.108 of this title] all benefits or advantages (less reasonably incurred collection costs) that an individual receives or is entitled to receive from social security (except those benefits provided under Title XIX of the Social Security Act [42 U.S.C.A. § 1396 et seq.] and except those medicare benefits to which a person’s entitlement depends upon use of his so-called 'life-time reserve’ of benefit days) workmen’s compensation, any State-required temporary, nonoccupational disability insurance, and all other benefits (except the proceeds of life insurance) received by or available to an individual because of the injury from any government, unless the law authorizing or providing for such benefits or advantages makes them excess or secondary to the benefits in accordance with this act, shall be subtracted from loss in calculating net loss.
(b) Tax deduction—If a benefit or advantage received to compensate for loss of income because of injury, whether from no-fault benefits or from any source of benefits or advantages subtracted under subsection (a) of this section, is not taxable income, the income tax saving that is attributable to such loss of income because of injury is subtracted in calculating net loss for work loss. Subtraction may not exceed twenty per cent (20%) of the loss of income and shall be in such lesser amount as the insurer reasonably determines is appropriate based on a lower value of the income tax advantage.

40 P.S. § 1009.206.

Section 206 clearly contemplates that Workmen’s Compensation benefits be deducted from gross work loss in determining basic loss benefits recoverable under the Act. In Motley v. State Farm Mutual Insurance Company, 502 *94Pa. 335, 466 A.2d 609 (1983), our supreme court was presented with an opportunity to construe Section 206 in conjunction with the $15,000 maximum work loss requirement of Section 202(b)(2). In Motley, the insured was injured in an accident in the course of his employment. His total combined weekly income at the time of the accident was $282.96 per week. Following the accident the insured received $163.84 a week in Workmen’s Compensation benefits. The court first noted that Section 206(a) of the No-fault Act mandated that Workmen’s Compensation benefits be subtracted from gross work loss. Id. at 339, 466 A.2d 611. Reading this section with reference to the $15,000 limit on work loss contained in Section 202(b), the court stated:

We hold that where an injured claimant is receiving Workmen’s Compensation benefits, excess no-fault benefits are to be computed by deducting the Workmen’s Compensation benefits from the insured’s actual wage, the difference being the benefits to which he is entitled. Section 1009.202(b) of the No-fault Act limits the amount of work loss benefits which the insurance company mil be required to pay.

Id. (emphasis added) (footnote omitted).

Again, it must be emphasized that what the insurance company insures against and what is compensable under the Act is “basic loss benefits” for work loss sustained. While work loss is initially computed by a gross computation method under Section 205, basic loss benefits for work loss sustained, which is what the insurer will be required to pay, is calculated on a net loss basis under Section 206 by offsetting certain enumerated benefits from the insured’s actual or gross wages. The court in Motley implicitly recognized that a net analysis is the proper method by which to calculate the $15,000 maximum in its statement that Section 202(b) places a $15,000 limit on the amount that the insurer will be required to pay under the Act. Consequently, I believe that the second prong of the Kamperis test, that is, the calculation of the date on which the victim’s *95accrued work loss equals the $15,000 maximum amount recoverable under the Act, contemplates calculation by the net loss formula contained in Section 206.

I would therefore hold that for purposes of determining the date on which the $15,000 maximum for work loss has been reached, a net computation method is appropriate. Unlike the majority’s analysis, which narrowly focuses on the definition of work loss, this interpretation gives effect to all of the provisions of the No-fault Act as well as to supreme court precedent. In addition, the net loss calculation method would promote judicial economy as well as the broad remedial purposes behind the No-fault Act. Because an individual may only recover basic loss benefits, which are computed by offsetting certain benefits to which he is entitled, it may often turn out that after offsetting these benefits the victim is entitled to nothing under the Act. The majority’s gross computation method would require the victim, in an effort to toll the limitations period, to institute an action as soon as his gross work loss approached the $15,000 limit, even though the subsequent court proceeding would merely determine that the victim sustained no compensable loss under the Act because the benefits received completely offset actual work loss. The net computation method would provide a victim with the opportunity to evaluate whether or not he will be entitled to benefits under the Act without necessitating the commencement of a lawsuit, with its attendant expense, in an attempt to preserve a right which may ultimately prove to be nonexistent. Additionally, the courts of this Commonwealth have consistently stated that in close or doubtful cases, provisions of the No-fault Act should be construed in favor of extending coverage. See Allstate v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980). Because the net computation method provides a longer time period before the $15,000 maximum is reached and the right to compensation is extinguished, I believe that it is also consistent with the broad remedial purposes behind the No-fault Act.

*96Accordingly, I would find that Workmen’s Compensation and Social Security benefits should have been offset from appellant’s actual work loss in calculating the date on which the $15,000 limit was reached, and that his action for excess no-fault benefits was timely filed. In so doing, I would expressly overrule Miller v. Prudential Property and Casualty Company, 344 Pa.Super. 28, 495 A.2d 973 (1985), and would endorse the analysis set forth in Augostine v. Pennsylvania Mutual Casualty Insurance Company, 338 Pa. Super. 15, 487 A.2d 828 (1984).

CIRILLO, President Judge, and McEWEN, J., join.

. Victim is defined as "an individual who suffers injury arising out of the maintenance or use of a motor vehicle." 40 P.S. § 1009.103.

. It is clear that appellant in this case is seeking compensation for basic loss benefits from the assigned claims carrier. As a result the term "no fault benefits” is synonymous with the term "basic loss benefits" in the instant matter.